I really like Jeffrey Rosen of G.W. Law School and the New Republic, as a writer, a scholar, and a person (we were classmates at Yale Law School). But it really irritates me that he continues to write of "activist conservatives, who yearn for the resurrection of what they call the Constitution in Exile," even though Randy Barnett, Orin Kerr, I, and others have pointed out that one cannot find any indvidual "activist conservatives" who actually use, or have used, that phrase, beyond one use in a related [and, ironically, critical] context by Judge Douglas Ginsburg in 1995. Randy summed it up quite well:
There is no "Constitution in Exile" movement, either literally or figuratively. As for literally, I and others had not even heard the expression, plucked from an obscure book review by Judge Douglas Ginsburg, until well after folks like you [Cass Sunstein] and Jeff Rosen had started using it to describe their intellectual opponents. And as author of the 2004 book, Restoring the Lost Constitution: The Presumption of Liberty, I would seem to be at the heart of whatever movement supposedly exists.
For obscure reasons .. the phrase "Constitution in Exile" viscerally appeals to critics of scholars and judges who, like me, favor interpreting the Constitution as amended according to its original meaning. Maybe it makes these "originalists" sound kooky or marginal or radical—like Russian nobility with their shadow governments futilely planning their return to power from the irrelevant comfort of London tea rooms. Maybe this rhetorical move has something to do with undermining future nominees to the Supreme Court who may be originalists.
Similarly, I wrote:
"Constitution in Exile" is a phrase used by Judge Douglas Ginsburg in an obscure article in Regulation magazine in 1995. From then until 2001, I, as someone who knows probably just about every libertarian and most Federalist Society law professors in the United States (there aren't that many of us), and who teaches on the most libertarian law faculty in the nation, never heard the phrase. Instead, the phrase was pretty much ignored until 2001, when it was picked up and publicized by liberals. In October 2001, the Duke Law Journal, at the behest of some liberal law professors assumedly worried about what would happen to constitutional law under Bush appointees, published a symposium on the Constitution in Exile. Thereafter, other left-wingers, such as Doug Kendall of the Community Rights Council and Professor Cass Sunstein, began to write about some dark conspiracy among right-wingers to restore something called "the Constitution in Exile."
Yet, outside of Ginsburg’s article, I still have not seen or heard any conservative or libertarian use the phrase, except to deny that they ever use it. And a quick Westlaw search shows that no conservative or libertarian constitutional scholar has ever used it in a law review article.
The one exception since these writings appeared is that after Rosen, Sunstein, et al. popularized the phrase, Judge Andrew Napolitano capitalized on the publicity by writing a book with that title. I think it's fair to say, however, that even after that book was published, and even after Rosen, Sunstein, and others popularized it, the phrase has received no traction among the elite conservative legal thinkers referenced by Rosen in his latest piece.
So, if Jeff and others want to accuse "activist conservatives" of wishing to revive what they (that is, liberal critics) think of as the "Constitution in Exile," they should feel free. But to claim that "activist conservatives" go around talking and writing about it is just plain false.